Advisory Opinion Advocate General to the Supreme Court: Court of Appeal’s decision can be upheld that the Allard Pierson Museum must hand over the Crimean Treasures to the State of Ukraine
Should the so-called Crimean Treasures, which are now in the Netherlands, be returned to the State of Ukraine or to the Crimean museums? The Court of Appeal of The Hague decided in October 2021 that the objects should be returned to the State of Ukraine. In his today’s Opinion, Advocate General Vlas advised the Supreme Court that the decision of the Court of Appeal be upheld.
The dispute
The dispute concerns the return of the art objects loaned by the Crimean Museums, referred to as the Crimean Treasures. These are archaeological objects, museum exhibits, that the Allard Pierson Museum (APM) in Amsterdam received on loan from the Crimean Museums for an exhibition running from February through August 2014. Ukrainian law was declared applicable to the relevant loan agreements. The art objects were loaned with the permission of Ukraine’s Ministry of Culture.
In March 2014, the Autonomous Republic of Crimea seceded from Ukraine and joined the Russian Federation. The secession and subsequent accession to Russia have not been recognised by the UN, the EU or the Netherlands. At the time of the secession and subsequent accession to Russia, the objects were still at the APM in Amsterdam on account of the exhibition.
Immediately after the secession, the Crimean Museums demanded that the art objects be returned. The State of Ukraine did so in May 2014. It is unclear to the APM to whom it must return the objects, which is why it is keeping the items in its custody until a final and irrevocable decision has been rendered by the courts.
Proceedings before the District Court and Court of Appeal
In December 2016, the District Court ruled that the Crimean Treasures must be returned to the State of Ukraine in accordance with the Dutch Heritage Act. The District Court ruled that the Crimean Treasures are currently being held in the Netherlands without a valid export permit from the Ukrainian authorities, constituting “illicit export” within the meaning of the Heritage Act and allowing the State of Ukraine to seek the surrender thereof.
On appeal, the Court of Appeal also ruled that the State of Ukraine’s claim for surrender should be awarded, albeit on different grounds. According to the Court of Appeal, the Heritage Act does not apply to this situation, because there is no question of “illicit export” within the meaning of the Heritage Act. The Court of Appeal found that surrender had to take place pursuant to the Ukrainian Law of Museums and Museum Affairs and a Ministerial Regulation of March 2014 that confers upon the Minister of Culture the authority to issue an order for the transfer of museum exhibits for the purposes of preservation in the event of risk of destruction, loss or damage. The Minister issued such an Order in May 2014. Under the Order, the museum exhibits are to be transferred to the Ukraine’s National Museum of Natural History in Kyiv pending stabilisation of the situation in Crimea. According to the Court of Appeal, this legislation serves to protect Ukraine’s cultural heritage and the State of Ukraine was entitled to issue this Order because it was done to protect its cultural heritage. Pursuant to a provision of private international law from the Dutch Civil Code, precedence can be given to these Ukrainian rules of public law.
The Crimean Museums have appealed the Court of Appeal’s decision before the Supreme Court. The State of Ukraine has also filed a conditional appeal in cassation.
Complaints in cassation
Counsel for the Crimean Museums is requesting the Supreme Court to set aside the Court of Appeal’s decision. The complaints raised in cassation include the violation of Article 1 of the First Protocol (the right to the peaceful enjoyment of one’s possessions) to the European Convention on Human Rights (ECHR) and the designation of the Ukrainian museum law regime as an 'overriding mandatory rule' within the meaning of the Dutch Civil Code. The State of Ukraine has raised a complaint about the Court of Appeal’s finding that no “illicit export” within the meaning of the Heritage Act has occurred.
Advocate General’s recommendation
The Advocate General holds that the complaint regarding the violation of Article 1 of the First Protocol to the ECHR cannot succeed. The infringement upon the right of operational management is lawful. It is based on a valid body of national legislation, it serves a legitimate public interest, and there is a fair balance between the infringement’s impact on the Crimean Museums and the public interest.
The Advocate General also opines that the Crimean Museums’ complaints in cassation regarding the Order as an overriding mandatory rule cannot succeed. In this case, the Court of Appeal has qualified the body of Ukrainian museum legislation as a public-law regulation that serves to protect Ukrainian cultural heritage. In principle, Dutch courts will not apply a foreign public-law regulation, unless this regulation can be considered to be an overriding mandatory provision. According to the Advocate General, the Crimean Museums’ real right of management governed by Ukrainian law may be compromised by this Ukrainian public-law regulation, which the Dutch courts may take into account as an overriding mandatory provision.
Supreme Court’s decision
The Supreme Court is tentatively scheduled to render a decision on 15 September 2023.
The Advocate General’s advisory opinion is an independent recommendation to the Supreme Court, which is free to decide whether or not to follow it. The Advocate General is a member of the Procurator General’s Office at the Supreme Court, which is an autonomous and independent part of the judiciary. The Procurator General’s Office is not part of the Public Prosecution Service.